Photo: Victims of violence: the first trials for human rights
violations will cover the massacre at the Suai church, the memorial for
which took place this month. Associated Press photo

JOANNA JOLLY in Dili

Over dinner in West Timor's top hotel, former East Timorese militia
intelligence chief, Elly Cater Ana, has a question: "Which countries
can give me political immunity?" His question and obvious anxiety
indicate how, a year after the violence that followed the United Nations
sponsored ballot on independence, the East Timorese militia, which played
a part in the atrocities, are beginning to feel the net tightening around
them.

But whether this fear extends to the Indonesian generals and government
officials who planned the systematic destruction of the territory, using
the militia as their proxy army, is less certain.

Despite an ongoing Indonesian investigation into gross human rights
violations in East Timor, indications so far are that Indonesia has
neither the political appetite nor legal apparatus to see Indonesian
perpetrators tried.

"Indonesia has no precedent to try human rights cases, which works
to the advantage of those in Indonesia who do not want to see the
Government or military brought to justice," says East Timorese human
rights campaigner Joaquim Fontesca.

Immediately after East Timor descended into violence last September,
the UN High Commissioner for Human Rights, Mary Robinson, travelled to
Darwin, northern Australia, to speak to refugees, prompting her to call
for the establishment of an international war crimes tribunal.

But her call was rejected by UN Secretary-General Kofi Annan, who took
the decision to place the responsibility for justice in the hands of an
Indonesian investigation.

"If the Indonesian authorities go ahead and proceed with what is a
credible trial, I do not believe the council would want to set up another
international tribunal," Mr Annan said when he visited the East
Timorese capital Dili in February.

According to the Indonesian Attorney-General's office in Jakarta, which
has taken over the investigation, indictments for five preliminary cases
can be expected at the end of this month.

"At this time we are still meeting to decide who the first
defendants will be," says Yusha Yahya, a spokesman for the team.

Although indictments will mark a positive step in the process, already
criticised by human rights groups for being too slow and ineffective, they
will also test its credibility.

The first five cases are: an attack on the house of pro-independence
leader Manuel Carrascalao a few days after he was involved in signing a
peace deal with militia and the Indonesian military in April last year,
and in which his son was killed; attacks on hundreds in the town of
Liquica, also in April; the sacking and burning of Bishop Carlos Belo's
house where many East Timorese were sheltering in Dili in September last
year; the death of Dutch journalist Sander Thoenes, allegedly shot by
Indonesian troops in Dili shortly after international peacekeepers
arrived, also in September; and in the same month, a massacre of hundreds
of people seeking shelter at the Suai church outside Dili.

If only militia and low-ranking military officers are named in these
indictments, it is likely that human rights groups and the international
community will reinstate calls for an international tribunal. "There
are military and police involved directly in most of the first five cases,
the question is whether Indonesia will indict those responsible further up
the chain of command," says one Western analyst.

Even before the August 30 ballot in East Timor last year, there was
ample evidence to connect the militia with the Indonesian military and
government.

Journalists who had been working in East Timor in the year up to the
vote reported that visits by top military officials to provincial towns in
East Timor were followed by the establishment of militia armies which
received arms, funding and training from the military.

A document leaked to the UN mission in East Timor in July last year,
signed by Indonesian Government official H. R. Garnadi and addressed to
the then Minister for Politics and Security, outlined a plan of
destruction of all "vital objects" in East Timor should the vote
be lost to independence.

During the violence immediately after the vote, the Indonesian military
was observed systematically burning buildings and forcing hundreds of
thousands of East Timorese across the border into Indonesian West Timor,
while at the same time they told the outside world they were attempting to
maintain order through martial law.

This plan even included using military planes and commercial airlines
Boraq, Garuda and Merpati to fly about 4,000 refugees on 12 flights a day
from Dili to Kupang in West Timor. "We were forcing people on to
planes who did not want to go. It must have cost the Government a
fortune," says a Merpati officer who was responsible for
co-ordination at Dili's airport.

At first there were positive signs that those responsible would be
brought to justice. The results of an Indonesian Human Rights
investigation released in January named 33 militia, local government
officials and military personnel responsible for the violence, including
the then Chief of Indonesia's armed forces, General Wiranto.

But since then, the Attorney-General himself, Marzuki Darusman, has
hinted it is unlikely that senior military figures would be charged.

The problems facing the Indonesian investigation do not only concern
who will be indicted. Last week's amendment to the Indonesian constitution
and the continuing lack of any current human rights legislation has led
rights groups to question whether Indonesia has the legal apparatus to try
the Government or military.

The amendment voted by Indonesian parliamentarians bans retroactive
prosecution of human rights cases. This means not trying those responsible
for past crimes committed when there were no laws to cover those crimes.

Although non-retroactivity is a principle recognised by governments
around the world, activists worry that in Indonesia it will be used to
block any trials of military personnel.

"This new amendment will prevent the prosecution of the East Timor
cases in a human rights court," says Asmara Nababan,
Secretary-General of Indonesia's National Commission on Human Rights.

However, he points out that there is still an opportunity to try the
cases under draft human rights legislation being considered in Indonesia.
This legislation is due to be passed by the Government in the next few
months.

"If this happens soon, I have not lost hope," says Mr Nababan.

But the proposed human rights legislation does not come without its own
problems. Although it provides for ad hoc human rights courts to be
established, this can only be done by presidential and parliamentary
decree, placing the process directly under political will. And there is no
guarantee that the Bill will be passed in time to try the East Timorese
cases.

In East Timor itself, calls for justice remain strong, as Mrs Robinson
discovered herself on a recent visit. "Justice came up at every
single meeting and I am not surprised because I remember hearing
secondhand, not witnessing directly myself, terrible human rights
violations, and that is not something that you can put out of your
mind," she said when asked if she was shocked by the insistence of
the calls.

The next few months will prove a testing time for the Indonesian
justice process. If there are neither indictments of senior figures nor
the passing of the new legislation, those monitoring the process will
increasingly ask whether it meets Mr Annan's criteria of credibility.

If not, human rights organisations and the international community will
increase its pressure to move the investigation to a special tribunal in
East Timor itself which, with international judges, prosecutors and
defenders, will function as a de facto international tribunal.

And the process will be watched very closely in East Timor, where human
rights campaigner Mr Fontesca wonders if he will ever see real justice for
the murder, destruction and violence of last year.

"There has to be justice in East Timor. Not just for the East
Timorese, but for the whole world community," says Mr Fontesca.

"It must be allowed to create a precedent that can work for
universal human rights in order to ensure there are no further
violations."

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